EXHIBIT 99.1
SEVENTH AMENDMENT TO THE
AMENDED, RESTATED AND CONSOLIDATED CREDIT AGREEMENT
SEVENTH AMENDMENT dated as of April 28, 2002 (this
"Amendment") with respect to the Amended, Restated and Consolidated Credit
Agreement dated as of October 12, 1999 (as amended, the "Credit Agreement") by
and among American Skiing Company ("American Ski") and the other borrowers party
thereto (collectively, the "Borrowers"), the lenders party thereto (the
"Lenders") and Fleet National Bank, N.A. (formerly known as BankBoston, N.A.),
as agent (the "Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Credit Agreement, the Lenders have
made Loans and other financial accommodations to the Borrowers which remain
outstanding; and
WHEREAS, the Borrowers have requested that the Agent and the
Lenders amend the Credit Agreement as set forth herein, and the Agent and the
Lenders are willing to do so, but only on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Defined Terms. Unless otherwise defined herein,
capitalized terms used herein have the meanings assigned in the Credit Agreement
(as amended by this Amendment) and the following terms shall have the following
meanings:
"Amendment Fee" shall have the meaning set forth in Section
6.2(b).
"Closing Date" shall mean the first date on which the
conditions precedent specified in Article IV of this Amendment shall
have been satisfied or the satisfaction thereof shall have been waived
in accordance with the terms hereof.
"Heavenly Purchase Agreement" shall mean that certain Purchase
Agreement dated as of March 25, 2002 by and among Heavenly Valley Ski &
Resort Corporation, American Ski, Heavenly Corporation, VR Heavenly I,
Inc., VR Heavenly II and Vail Resorts, Inc.
"Heavenly Transaction" shall mean the sale of all general and
limited partnership interests in Heavenly Valley, Limited Partnership
pursuant to the terms of the Heavenly Purchase Agreement.
ARTICLE II
AMENDMENTS
Section 2.1. Amendments to Section 1.1 (Definitions). (a)
Section 1.1 of the Credit Agreement is hereby amended by (i) deleting the
definitions of Additional Revolving Credit Advances, Applicable Base Rate,
Applicable LIBOR Rate, Applicable Money Market Rate, Base Rate Loan, Base Rate
Margin, Business Day, Capital Expenditure Reinvestment Amount, Consolidated
Adjusted Cash Flow, Existing Revolving Credit Advances, Interest Period, LIBOR
Pricing Option, LIBOR Rate, LIBOR Rate Fixing Day, LIBOR Rate Loan, LIBOR Rate
Margin, Maximum Revolving Credit Amount, Money Market Loans, Money Market Rate,
Participated Advances, Permitted Acquisitions, Permitted Dispositions, Permitted
Non-Strategic Asset Sales, Pricing Notice, Pricing Schedule, Swing Line
Commitment and (ii) inserting the following definitions in their proper
alphabetical order:
"Available Proceeds" - See Section 4.1(c)(ii) hereof.
"Business Day" shall mean any day other than a Saturday,
Sunday or legal holiday in which banks in Boston, Massachusetts are
open for a conduct of a substantial part of their commercial banking
business.
"Consolidated Adjusted Cash Flow" shall mean shall mean (a)
Consolidated EBITDA (before any adjustments to reflect acquisitions,
sales and exchanges of property during such period) for each fiscal
year of American Ski and its Restricted Subsidiaries less (b) the sum
of (i) the lesser of actual total Capital Expenditures or $8,000,000,
less, in either case, any Available Proceeds used for Capital
Expenditures pursuant to Section 4.1(c)(ii) and (ii) cash taxes paid.
"Consolidated EBITDA" shall mean EBITDA.
"Maximum Revolving Credit Amount" shall mean as of any date of
determination, the lesser of (a) the applicable amount set forth below
(as each such amount may be reduced from time to time pursuant to the
mandatory reduction requirements of Section 4.1(c)):
Closing Date - July 28, 2002 $38,000,000
July 29, 2002 - October 27, 2002 $48,000,000
October 28, 2002 - December 31, 2002 $53,000,000
January 1, 2003 - January 26, 2003 $45,000,000
January 27, 2003 - March 15, 2003 $23,000,000
March 16, 2003 - April 27, 2003 $10,000,000
April 28, 2003 - July 28, 2003 $40,000,000
July 29, 2003 - October 27, 2003 $50,000,000
October 28, 2003 - December 31, 2003 $53,000,000
January 1, 2004 - January 26, 2004 $45,000,000
January 27, 2004 - March 15, 2004 $25,000,000
March 16, 2004 - April 27, 2004 $10,000,000
April 28, 2004 - May 31, 2004 $40,000,000;
or (b) the amount to which the Maximum Revolving Credit Amount may have
been reduced pursuant to Section 2.12; provided that if the obligations
of the Lenders to make further Loans is terminated upon the occurrence
of an Event of Default, the Maximum Revolving Credit Amount as of any
date of determination thereafter shall be deemed to be $0.
Notwithstanding anything to the contrary set forth above, effective as
of the Vail L/C Termination Date, the Maximum Revolving Credit Amount
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for each period set forth in clause (a) above shall be deemed to be
reduced by $3,000,000.
"Permitted Dispositions" shall mean (a) the sale, lease or
other disposition of inventory, including residential real property
held for resale in the ordinary course of business, (b) dispositions of
Excess Real Property in accordance with the requirement of Section 2.21
in an aggregate amount, together with amounts under clause (c) hereof,
of up to $2,000,000 in any fiscal year of the Borrowers and (c) sales
of developed real estate units in the ordinary course of business in an
aggregate amount, together with amounts under clause (b) hereof, of up
to $2,000,000 in any fiscal year of the Borrowers.
"Seventh Amendment" shall mean the Seventh Amendment, dated as
of April 30, 2002, to the Amended, Restated and Consolidated Credit
Agreement, dated as of October 12, 1999.
"Swing Line Commitment" shall mean $2,000,000.
"Vail L/C" shall mean that certain Letter of Credit in a face
amount of $4,000,000, in form and substance satisfactory to the Issuing
Bank, to be issued pursuant to Section 2.16 for the account of American
Ski in favor of Vail Resorts, Inc.
"Vail L/C Termination Date" shall mean the earlier of (a)
November 8, 2003 or (b) the date on which the Vail L/C is cancelled or
otherwise terminated.
(b) Section 1.1 of the Credit Agreement is hereby further
amended by inserting immediately before the period at the end of the definition
of Capital Expenditures the following:
"; provided, however, that Capital Expenditures shall not include amounts paid
or incurred in connection with (i) land payment due to Iron Mountain Associates
in September, 2002 and (ii) land payment to Wasatch Capital in May, 2003".
Section 2.2. Amendment to Section 2.1 (The Revolving Credit).
Section 2.1(b) of the Credit Agreement is hereby amended by deleting the second
proviso thereof and inserting in lieu thereof the following:
"and provided, further, that during each fiscal year of the Borrowers
beginning fiscal year 2003, there shall be a period of thirty (30)
consecutive days which shall include April 28 of each year during
which (i) the aggregate principal amount of Revolving Credit Advances
outstanding shall not exceed $0 and (ii) Letter of Credit Exposure
shall not exceed (x) $7,000,000 through and including the Vail L/C
Termination Date and (y) thereafter, $3,000,000".
Section 2.3. Amendment to Section 2.2 (Making of Revolving
Credit Advances). Section 2.2(a) of the Credit Agreement is hereby amended by
deleting the proviso in the first sentence of said Section.
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Section 2.4. Amendment to Section 2.3 (Interest on Revolving
Credit Advances). Section 2.3 of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting in lieu thereof the
following:
"Section 2.3 Interest on Revolving Credit Advances. The Borrowers,
jointly and severally, shall pay interest on the unpaid balance of the
Revolving Credit Advances from time to time outstanding at a per annum
rate equal to the Base Rate plus 4.25%; provided, that in no event
shall interest accrue at a per annum rate less than 9.75%. Interest on
the Revolving Credit Advances shall be payable monthly in arrears on
the first day of each month.".
Section 2.5. Amendments to Section 2.5 (Interest on Term
Loans). Section 2.5 of the Credit Agreement is hereby amended by deleting said
Section in its entirety and inserting in lieu thereof the following:
"Section 2.5 Interest on the Term Loans. The Borrowers, jointly and
severally, shall pay interest on the unpaid balance of the Term Loans
from time to time outstanding at a per annum rate equal to the Base
Rate plus 4.25%; provided, that in no event shall interest accrue at a
per annum rate less than 9.75%. Interest on the Term Loans shall be
payable monthly in arrears on the first day of each month.".
Section 2.6. Amendments to Section 2.6 (Election of LIBOR
Pricing Options). Section 2.6 of the Credit Agreement is hereby amended by
deleting said Section and inserting in lieu thereof the following:
"Section 2.6 [Intentionally Omitted.]".
Section 2.7. Amendments to Section 2.9 (Fees). Section 2.9(a)
of the Credit Agreement is hereby amended by deleting the phrase "at the
applicable rate set forth on the Pricing Schedule" and inserting in lieu thereof
the phrase "at a per annum rate equal to 0.50%".
Section 2.8. Amendments to Section 2.14 (Changed
Circumstances). Section 2.14 of the Credit Agreement is hereby amended by
deleting said Section and inserting in lieu thereof the following:
"Section 2.14 [Intentionally Omitted.]".
Section 2.9. Amendments to Section 2.16 (Letters of Credit).
Section 2.16(a) of the Credit Agreement is hereby amended by deleting the amount
"$5,000,000" and inserting in lieu thereof the phrase "(i) $7,000,000 through
and including the Vail L/C Termination Date and (ii) thereafter, $3,000,000.".
Section 2.10. Amendments to Section 2.18 (Swing Line
Commitment). Section 2.18 of the Credit Agreement is hereby amended by deleting
the phrase "or Money Market Loans".
Section 2.11. Amendments to Section 2.19 (Procedure for Swing
Line Borrowing; Interest on Swing Line Loans). Section 2.19 of the Credit
Agreement is hereby amended by (a) deleting the phrase ", (b) whether such Swing
Line Loan is requested to be a Money Market Loan or a Base Rate Loan and (c)"
and inserting in lieu thereof the phrase "and (b)" and (b) by deleting the
phrase "or the Money Market Rate".
Section 2.12. Amendments to Section 2.19 (Procedure for Swing
Line Borrowing; Interest on Swing Line Loans). Section 2.19 of the Credit
Agreement is hereby amended by deleting the last two sentences of said Section
and inserting in lieu thereof the following:
"The Borrowers, jointly and severally, shall pay interest on the
unpaid balance of the Swing Line Loans from time to time outstanding at
a per annum rate equal to the Base Rate plus 4.25%; provided, that in
no event shall interest accrue at a per annum rate less than 9.75%.
Interest on the Swing Line Loans shall be payable monthly in arrears on
the first day of each month.".
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Section 2.13. Amendments to Section 2.21 (Release of Certain
Liens). Section 2.21(b) of the Credit Agreement is hereby amended by deleting
said Section in its entirety and inserting in lieu thereof the following:
"(b) So long as no Default exists, the Agent shall release the liens
on properties or assets sold or disposed of in connection with Section
9.8.".
Section 2.14. Amendment to Section 4.1 (Mandatory Repayments
and Prepayments). (a) Section 4.1(c)(ii) of the Credit Agreement is hereby
amended by deleting said Section and inserting in lieu thereof the following:
"(ii) At any time on and after the Closing Date, if American Ski or
any of its Restricted Subsidiaries receives Cash Proceeds from any sale
or disposition of assets or receives Cash Insurance Proceeds, an amount
equal to 100% of the Net Cash Proceeds therefrom shall be applied as a
mandatory repayment of principal of outstanding Term Loans and a
mandatory prepayment of Revolving Credit Advances and associated
reduction of the Maximum Revolving Credit Amount in accordance with
clause (v) below; provided, however, that, if no Default then exists,
the Borrowers shall, in any fiscal year of the Borrowers, be permitted
to apply Available Proceeds to Permitted Capital Expenditures by
American Ski and its Restricted Subsidiaries in compliance with this
Agreement within 365 days following the date of such sale or
disposition or receipt of such Cash Insurance Proceeds; and provided,
further, that if all or any of such Net Cash Proceeds not so applied to
the repayment of Term Loans and Revolving Credit Advances are not so
used within such 365 day period, such remaining portion shall be
applied on the last day of such period as a mandatory repayment of
principal of outstanding Term Loans and a mandatory prepayment of
Revolving Credit Advances and associated reduction of the Maximum
Revolving Credit Amount in accordance with clause (v) below. "Available
Proceeds" means, during any fiscal year of the Borrowers, 100% of all
Net Cash Proceeds from Permitted Dispositions up to $500,000, 75% of
all Net Cash Proceeds from Permitted Dispositions between $500,001 and
$1,000,000, 50% of all Net Cash Proceeds from Permitted Dispositions
between $1,000,001 and $2,000,000, and 25% of all Net Cash Proceeds
from Permitted Dispositions in excess of $2,000,000.".
(b) Section 4.1(c)(iii) of the Credit Agreement is hereby
amended by (i) deleting the phrase ", excluding proceeds received from the sale
or issuance of equity interests which are used to effect Permitted Acquisitions
on the date of sale or issuance of such equity interests and the Series B Gross
Proceeds," and (ii) deleting the proviso at the end thereof.
(c) Section 4.1(c)(iv) of the Credit Agreement is hereby
amended by deleting the proviso at the end thereof and inserting in lieu thereof
the phrase "provided, however, that the requirements of this clause (iv) shall
not apply to the proceeds received by American Ski or any of its Restricted
Subsidiaries from Capital Lease Obligations or other Indebtedness permitted to
be issued pursuant to Section 9.1(f)(ii) hereof in an aggregate amount up to
$500,000 in any fiscal year of the Borrowers".
(d) Section 4.1(c)(v) of the Credit Agreement is hereby
amended by deleting the phrase "be made ten days following notice from the Agent
that such payment is required and specifying the payment date (the "Mandatory
Prepayment Notice.")" and inserting in lieu thereof the phrase "be made within
two Business Days of the receipt by American Ski or any of its Restricted
Subsidiaries of any proceeds giving rise to a mandatory prepayment".
(e) Section 4.1 of the Credit Agreement is hereby amended by
deleting Sections 4.1(d) and (e) and inserting in lieu thereof the following:
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"(d) The Borrowers shall, on the Vail L/C Termination Date, prepay the
Term Loans in an amount not less than $1,000,000 which prepayment shall
be shall be applied in inverse order of maturity.".
Section 2.15. Amendments to Section 4.2 (Voluntary
Prepayments). Section 4.2(b) of the Credit Agreement is hereby amended by
deleting said Section and inserting in lieu thereof the following:
"(b) [Intentionally Omitted.]".
Section 2.16. Amendments to Section 4.3 (Payment and Interest
Cutoff). Section 4.3 of the Credit Agreement is hereby amended by (i) deleting
the phrase "(a) in the case of prepayment of Base Rate Loans," and (ii) deleting
the phrase "and (b) in the case of prepayment of LIBOR Rate Loans on any day
other than the last day of the Interest Period applicable thereto, not later
than 12:00 noon (Boston time), three (3) Business Days, prior to the proposed
date of payment, and, in each case," and inserting in lieu thereof the word
"and".
Section 2.17. Amendments to Section 4.6 (Payments Not at End
of Interest Period). Section 4.6 of the Credit Agreement is hereby amended by
deleting said Section and inserting in lieu thereof the following:
"Section 4.6. [Intentionally Omitted.]".
Section 2.18. Amendment to Section 7.1 (Ratio of Consolidated
Total Debt to Consolidated EBITDA). Section 7.1 of the Credit Agreement is
hereby amended by deleting the chart in said section and inserting in lieu
thereof the following:
"Fiscal Quarter Ratio
2002 Quarter 4 8.50:1.00
2003 Quarter 1 8.25:1.00
2003 Quarter 2 7.25:1.00
2003 Quarter 3 5.75:1.00
2003 Quarter 4 5.75:1.00
2004 Quarter 1 5.75:1.00
2004 Quarter 2 5.75:1.00
2004 Quarter 3
and Thereafter 5.50:1.00".
Section 2.19. Amendment to Section 7.2 (Ratio of Consolidated
Adjusted Cash Flow to Consolidated Debt Service). Section 7.2 of the Credit
Agreement is hereby amended by deleting the chart in said section and inserting
in lieu thereof the following:
"Fiscal Quarter Ratio
2002 Quarter 4 0.40:1.00
2003 Quarter 1 0.40:1.00
2003 Quarter 2 0.50:1.00
2003 Quarter 3
and Thereafter 1.00:1.00".
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Section 2.20. Amendment to Section 7.3 (Ratio of Consolidated
EBITDA to Consolidated Interest Expense). Section 7.3 of the Credit Agreement is
hereby amended by deleting the chart in said section and inserting in lieu
thereof the following:
"Fiscal Quarter Ratio
2002 Quarter 4 0.80:1.00
2003 Quarter 1 0.80:1.00
2003 Quarter 2 1.00:1.00
2003 Quarter 3
and Thereafter 1.50:1.00".
Section 2.21. Amendment to Section 7.4 (Minimum Consolidated
Net Worth). Section 7.4 of the Credit Agreement hereby amended by deleting said
Section and inserting in lieu thereof the following:
"Section 7.4 [Intentionally Omitted.]".
Section 2.22. Amendment to Section 7.5 (Minimum Consolidated
EBITDA). Section 7.5 of the Credit Agreement hereby amended by deleting said
Section and inserting in lieu thereof the following:
"Section 7.5 [Intentionally Omitted.]".
Section 2.23. Amendment to Section 7.6 (Consolidated Senior
Debt to Consolidated EBITDA). Section 7.6 of the Credit Agreement is hereby
amended by deleting the chart in said section and inserting in lieu thereof the
following:
"Fiscal Quarter Ratio
2002 Quarter 4 2.75:1.00
2003 Quarter 1 2.75:1.00
2003 Quarter 2 2.50:1.00
2003 Quarter 3 1.75:1.00
2003 Quarter 4 1.75:1.00
2004 Quarter 1
and Thereafter 1.75:1.00".
Section 2.24. Amendment to Section 9.1 (Restrictions on
Indebtedness). (a) Section 9.1(f) of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting in lieu thereof the
following:
"(f) (i) Real Estate Guaranties; provided that the sum of
Real Estate Guaranties shall not exceed $5,000,000 at any time;
(ii) (A) Capitalized Lease Obligations and Indebtedness to
purchase tangible assets (which Indebtedness may be secured by the assets so
purchased) in an aggregate amount not to exceed $3,000,000 at any time;
(iii) other unsecured Indebtedness in an amount not to exceed
$15,000,000 at any time;
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(iv) the Junior Subordinated Notes issued by American Ski in
August 2001.".
(b) Section 9.1(g) of the Credit Agreement is hereby amended
by deleting said Section in its entirety and inserting in lieu thereof the
following:
"(g) [Intentionally Omitted].".
Section 2.25. Amendment to Section 9.3 (Investments). (a)
Section 9.3(c) of the Credit Agreement is hereby amended by deleting the phrase
"or other assets as a result of Permitted Acquisitions" in said Section.
(b) Section 9.3(h) of the Credit Agreement is hereby amended
by deleting said Section and inserting in lieu thereof the following:
"(h) [Intentionally Omitted.]".
(c) Section 9.3(j) of the Credit Agreement is hereby amended
by deleting the text of clause (iii) of said Section and inserting in lieu
thereof the following:
"[Intentionally Omitted]".
(d) Section 9.3(l) of the Credit Agreement is hereby amended
by deleting said Section and inserting in lieu thereof the following:
" (l) Other Investments in an aggregate amount not to exceed
$2,000,000 at any time.".
Section 2.26. Amendment to Section 9.4 (Mergers, Acquisitions,
Etc.). Section 9.4 of the Credit Agreement is hereby amended by (i) deleting the
comma at the end of clause (a) and inserting in lieu thereof the word "and" and
(ii) deleting the phrase "and (c) Permitted Acquisitions".
Section 2.27. Amendment to Section 9.6 (Distributions).
Section 9.6 of the Credit Agreement is hereby amended by deleting the text of
clause (a) of said Section and inserting in lieu thereof the phrase
"[Intentionally Omitted]".
Section 2.28. Amendment to Section 9.7 (Capital Expenditures).
Section 9.7 of the Credit Agreement is hereby amended by deleting Sections
9.7(b) and (c) and inserting in lieu thereof the following:
"(b) For fiscal year 2002, American Ski and its Restricted
Subsidiaries may make Capital Expenditures of not more than
$13,800,000. For each fiscal year beginning fiscal year 2003, American
Ski and its Restricted Subsidiaries may make Capital Expenditures in
each fiscal year of not more than $9,500,000".
Section 2.29. Amendment to Section 9.8 (Disposition of
Assets). Section 9.8 of the Credit Agreement is hereby amended by deleting said
section and inserting in lieu thereof the following:
"Section 9.8 Disposition of Assets. Sell, lease or otherwise dispose
of any assets except for Permitted Dispositions; provided, that, in
advance of any Permitted Disposition, American Ski shall provide the
Agent and the Lenders a certificate pursuant to which it represents
that such Permitted Disposition is for fair market value.
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Notwithstanding anything to the contrary set forth herein, individual
sales or dispositions or a series of sales or dispositions (other than
Permitted Dispositions) for consideration of up to $1,000,000 shall be
permitted with the consent of the Agent.".
Section 2.30. Amendments to Section 10.1 (Events of Default).
Section 10.1(l) of the Credit Agreement is hereby amended by deleting the phrase
", except as a result of a Permitted Disposition".
Section 2.32. Amendments to Schedule 2 (Pricing Schedule).
Schedule 2 to the Credit Agreement is hereby amended by deleting said Schedule
in its entirety.
ARTICLE III
AGREEMENTS
Section 3.1. Agreements. (a) Deferred Interest Spread. The
Deferred Interest Spread (as defined in the Second Amendment) shall cease to
accrue on the Closing Date.
(b) Reporting. The Borrowers hereby agree to provide, as
promptly as possible but no later than Thursday of each week during the period
beginning December 1 and ending April 15 of each year, an income statement which
shall detail revenues and expenses for the prior week, in form and substance
satisfactory to the Agent.
Section 3.2. Agreements Deemed Agreements under the Credit
Agreement. For purposes of the Credit Agreement, the agreements of the Borrowers
contained in this Article III shall be deemed to be, and shall be, agreements
under the Credit Agreement. Any breach on the part of the Borrowers of any
agreement contained in this Article III shall constitute an Event of Default.
Section 3.3. Covenants under Second Amendment. The covenants
of the Borrowers set forth in Sections 3.1(c)-(i), inclusive, of the Second
Amendment, shall cease to apply from and after the Closing Date.
ARTICLE IV
CLOSING DATE
Section 4.1 Closing Date. This Amendment shall become
effective as of the date hereof upon (i) receipt by the Agent of (a)
counterparts of this Amendment, duly executed and delivered by the Borrowers,
the Agent and the Lenders, (b) payment in full in cash of the Deferred Interest
Spread accrued and unpaid through the Closing Date, and (c) payment in full in
cash of the invoiced and unpaid fees and expenses of the Agent's professionals
as of the date hereof and (ii) consummation of the Heavenly Transaction and
prepayment of the (a) Term Loan in an amount not less than $28,043,772 which
shall be applied in the inverse order of maturity and shall reduce the principal
amount outstanding under the Term Loan to not greater than $33,427,293, (b) the
Additional Revolving Credit Advances in a principal amount equal to $5,200,000,
(c) the Participated Advances in a principal amount equal to $7,200,000 and (d)
the Existing Revolving Credit Advances in an amount not less than $30,757,959,
in each case, with the proceeds thereof.
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ARTICLE V
INTERPRETATION
Section 5.1. Continuing Effect of the Credit Agreement. The
Borrowers, the Agent and each Lender hereby acknowledges and agrees that the
Credit Agreement shall continue to be and shall remain unchanged and in full
force and effect in accordance with its terms, except as expressly modified
hereby.
Section 5.2. No Waiver. Nothing contained in this Amendment
shall be construed or interpreted or is intended as a waiver of any Default or
Event of Default or of any rights, powers, privileges or remedies that the Agent
or the Lenders have or may have under the Credit Agreement, any other related
document or applicable law on account of such Default or Event of Default.
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ARTICLE VI
MISCELLANEOUS
Section 6.1. Representations and Warranties. The Borrowers
hereby represent and warrant as of the date hereof that, after giving effect to
this Amendment, (a) no Default or Event of Default has occurred and is
continuing, and (b) all representations and warranties of the Borrowers
contained in the Credit Agreement are true and correct in all material respects
with the same effect as if made on and as of such date.
Section 6.2. Payment of Fees and Expenses. (a) The Borrowers
hereby agree to pay or reimburse the Agent on demand for all its reasonable
out-of-pocket costs and expenses incurred in connection with the preparation and
execution of this Amendment, including, without limitation, the reasonable fees
and disbursements of counsel to the Agent. In furtherance of the provisions of
this Section 6.2 and Section 14.5 of the Credit Agreement, the Borrowers hereby
agree that the Agent shall be entitled, upon one Business Day's written notice
to the Borrowers, to debit any operating account of any Borrower to collect
costs and expenses to which the Agent is entitled pursuant to this Section 6.2
and Section 14.5 of the Credit Agreement. Any such written notice shall identify
the operating account to be debited.
(b) The Borrowers shall pay to the Agent, for the account of
each Lender on a pro rata basis, a $750,000 amendment fee (the "Amendment Fee")
payable (and subject to being waived) on February 1, 2003; provided, however,
that if no Defaults or Events of Default shall exist on January 31, 2003, then
the Amendment Fee shall be waived in its entirety. The aggregate amount of the
Amendment Fee shall be deemed to be earned on the Closing Date.
Section 6.3. Counterparts. This Amendment may be executed by
the parties hereto in any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
Section 6.4. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE COMMONWEALTH OF
MASSACHUSETTS.
Section 6.5. Reservation of Rights. Notwithstanding anything
contained in this Amendment, the Borrowers acknowledge that the Agent and the
Lenders do not waive, and expressly reserve, the right to exercise, at any time,
any and all of their rights and remedies under the Credit Agreement, any other
related document and applicable law on account of any Default or Event of
Default.
Section 6.6. Confirmation of Indebtedness. The Borrowers
hereby confirm and acknowledge that, as of the Closing Date, (i) the Borrowers
are truly and justly indebted to the Lenders, without defense, counterclaim or
offset of any kind and (ii) the Borrowers are liable to the Lenders in respect
of Loans in the aggregate principal amount of $102,464,185.03 plus outstanding
Letters of Credit in an aggregate amount equal to $439,669.00.
Section 6.7. Waiver. The Borrowers hereby release, waive, and
forever relinquish all claims, demands, obligations, liabilities and causes of
action of whatever kind or nature, whether known or unknown, which any of them
have, may have, or might assert at the time of execution of this Amendment or in
the future against the Agent, the Lenders and/or their respective parents,
affiliates, participants, officers, directors, employees, agents, attorneys,
accountants, consultants, successors and assigns (collectively, the "Lender
Group"), directly or indirectly, which occurred, existed, was taken, permitted
or begun prior to the execution of this Amendment, arising out of, based upon,
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or in any manner connected with (i) any transaction, event, circumstance,
action, failure to act or occurrence of any sort or type, whether known or
unknown, with respect to the Credit Agreement, any other Lender Agreement and/or
the administration thereof or the obligations created thereby; (ii) any
discussions, commitments, negotiations, conversations or communications with
respect to the refinancing, restructuring or collection of any obligations
related to the Credit Agreement, any other Lender Agreement and/or the
administration thereof or the obligations created thereby, or (iii) any matter
related to the foregoing; provided, however, that the provisions of this Section
6.7 shall not apply to any such matters of which the Borrowers are presently
unaware and which constitute or result from the gross negligence and/or willful
misconduct of any member of the Lender Group.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the date first above written.
AMERICAN SKIING COMPANY
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Title: CFO
SUNDAY RIVER SKIWAY CORPORATION
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Title: CFO
SUNDAY RIVER LTD.
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Title: CFO
PERFECT TURN, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Title: CFO
SUNDAY RIVER TRANSPORTATION INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Title: CFO
L.B.O. HOLDING, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Title: CFO
SRH, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Title: CFO
S-K-I, LTD.
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Title: CFO
KILLINGTON, LTD.
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Title: CFO
MOUNT SNOW LTD.
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Title: CFO
PICO SKI AREA MANAGEMENT COMPANY
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Title: CFO
KILLINGTON RESTAURANTS, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Title: CFO
DOVER RESTAURANTS, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Title: CFO
SUGARLOAF MOUNTAIN CORPORATION
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Title: CFO
MOUNTAINSIDE
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Title: CFO
ASC UTAH
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Title: CFO
STEAMBOAT SKI & RESORT CORPORATION
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Title: CFO
HEAVENLY SKI & RESORT CORPORATION
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Title: CFO
HEAVENLY CORPORATION
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Title: CFO
HEAVENLY VALLEY, LIMITED PARTNERSHIP
By: Heavenly Corporation, its general
partner
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Title: CFO
FLEET NATIONAL BANK (successor in interest to
BankBoston, N.A.), as Agent
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Title: Vice President
FLEET NATIONAL BANK (successor in interest to
BankBoston, N.A.), as a Lender
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Title: Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as a
Lender
By: /s/ illegible
---------------------------------------
Title: AVP
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
successor by merger to First Security Bank,
N.A., as a Lender
By: /s/ illegible
---------------------------------------
Title: AVP
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ illegible
---------------------------------------
Title: Vice President
THE XXXXXX BANK, N.A., as a Lender
By: /s/ illegible
---------------------------------------
Title: Vice President
BLACK DIAMOND CLO 1998-1 LTD., as a Lender
By: /s/ illegible
---------------------------------------
Title: Director
BLACK DIAMOND CLO 2000-1 LTD., as a Lender
By: /s/ illegible
---------------------------------------
Title: Director
BLACK DIAMOND INTERNATIONAL FUNDING, LTD.,
as a Lender
By: /s/ illegible
---------------------------------------
Title: Director
XXXXXXX XXXXX PRIME RATE PORTFOLIO,
as a Lender
By: Xxxxxxx Xxxxx Asset Management,
L.P., as Investment Advisor
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Title: Authorized Signatory
DEBT STRATEGIES FUND, INC., as a Lender
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Title: Authorized Signatory
CAPTIVA II FINANCE LTD., as a Lender
By: /s/ illegible
---------------------------------------
Title:
KZH-PAMCO LLC, as a Lender
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------------
Title: Authorized Agent
KZH HIGHLAND-2 LLC, as a Lender
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------------
Title: Authorized Agent
XXX XXXXXX PRIME RATE INCOME TRUST, as a
Lender
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Title: Executive Director
GLENEAGLES TRADING LLC, as a Lender
By: /s/ Xxx X. Xxxxxx
---------------------------------------
Title: Asst. Vice President
SRV-HIGHLAND, INC., as a Lender
By: /s/ Xxx X. Xxxxxx
---------------------------------------
Title: Asst. Vice President
LONG LANE MASTER TRUST, as a Lender
By: /s/ illegible
---------------------------------------
Title:
